Trustees Of the Roman Catholic Church for the Archdiocese Of Canberra And Goulburn and Act Heritage Council (Administrative Review)
[2012] ACAT 81
•21 December 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF CANBERRA AND GOULBURN & ACT HERITAGE COUNCIL (Administrative Review) [2012] ACAT 81
AT 59 of 2012
Catchwords: ADMINISTRATIVE REVIEW - Heritage listing of church - joining a new party to proceeding: “interest” under the Heritage Act 2004 and section 29(5) of the ACT Civil and Administrative Tribunal Act 2008 – whether interests of persons are affected by decision under review: interest of a person to be added as a party distinguished from interest of an applicant for review – application of the Human Rights Act 2004 –– whether interests of persons fall within “ripples of affection” of the decision under review – whether an entity is an interested person: section 22Q of the ACT Civil and Administrative Tribunal Act 2008
List of legislation: ACT Administrative Appeals Tribunal Act 1989, s 28
Administrative Appeals Tribunal Act 1975 (Cth), s 27 and 30
ACT Civil and Administrative Tribunal Act 2008, ss 7, 22Q, 29 and 56
Archaeological and Aboriginal Relics Preservation Act 1972 (Vic)Heritage Act 2004, ss 10, 13, 40, 111, 112 and 114
Human Rights Act 2004, ss 14, 21, 28, 30, 40 and 40B
Legislation Act 2001, s 160
Roman Catholic Church Property Trust Act 1937
List of cases: Allan v Transurban City Link Ltd (2001) 208 CLR 167
Allatt v ACT Government Health Directorate [2012] ACAT 67
Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 121 ALR 373
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493; 28 ALR 257
Catholic Education Office and Human Rights and Equal Opportunity Commission [2003] AATA 899
Warren Gardner & Julie Beaver v ACT Planning and Land Authority [2010] ACAT 64Levy v Victoria (1997) 189 CLR 579
Momcilovic v The Queen (2011) 245 CLR 1
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; 36 ALR 425
Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No. 1) (1980) 3 ALD 74Re Coonan and Commissioner of Taxation (2006) 90 ALD 472
Re Islam (2010) 244 FLR 158
Re: Marine World Victoria Ltd and Minister for Arts, Heritage and The Environment (1986) 10 ALD 262Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67
US Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520
List of Texts/Papers: Creyke and McMillan, Control of Government Action: Text, Cases & Commentary 3rd edn (2012)
Tribunal: Professor P. Spender – Presidential Member
Date of Orders: 21 December 2012
Date of Reasons for Decision: 21 December 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 12/59
BETWEEN:
TRUSTEES OF THE ROMAN CATHOLIC
CHURCH FOR THE ARCHDIOCESE
OF CANBERRA AND GOULBURN
Applicant
AND:
ACT HERITAGE COUNCIL
Respondent
TRIBUNAL: Professor P Spender – Presidential Member
DATE: 21 December 2012
ORDERS
- Upon being satisfied that the following persons have interests that are affected by the decision under review, it is ordered that they each be joined as parties to the proceedings:
a) Dallas Hosking
b) Vincent Kane
c) William Meani
- The application by the Parish Pastoral Council of St Brigid’s and St Patrick’s Central Canberra dated 21 November 2012 to be joined as a party to the proceedings is dismissed.
- The matter is to be listed for further directions on a date and at a time to be advised by the Tribunal to the parties.
………………………………..
Professor P. Spender
Presidential Member
REASONS FOR DECISION
BACKGROUND
1.The present matter concerns an application for review of a decision by the ACT Heritage Council (the respondent) on 19 July 2012 to list St Patrick’s Church, Braddon and surrounds (St Patrick’s Church) on the ACT Heritage Register. St Patrick's Church is located at Block 7 Section 57 Braddon and it was registered on the ACT Heritage Register on the basis that it had heritage significance because it satisfied subsections 10(c) and 10(h) of the Heritage Act 2004 (Heritage Act).
2.On 14 August 2012, the applicant, constituted by the Trustees of the Roman Church for the Archdiocese of Canberra and Goulburn, filed an application with the ACT Civil and Administrative Tribunal (tribunal or Tribunal) seeking review of the respondent’s decision.
3.The applicant is the lessee of Block 7 Section 57 Braddon. Letters to the respondent by the former and present Archbishops of Canberra and Goulburn, the Most Reverend Mark Coleridge and Monsignor John Woods respectively, indicated that the intention of the applicant is to redevelop the area where St Patrick’s Church is situated to fund development in the precinct of St Christopher’s Cathedral at Manuka.[1] Under a draft variation to the Territory Plan (DV308) it is proposed that Block 7 Section 57 Braddon be rezoned from community use to a commercial CZ5 mixed use zone.[2]
[1] Tribunal documents pages 351 and 360
[2] Tribunal documents page 265
4.The Department of Disability, Housing and Community Services (DHCS) has previously undertaken a planning study into the proposed redevelopment of Sections 52 and 57 Braddon and Section 7 Reid. The Commissioner for Social Housing is the lessee of adjoining properties in Section 52 Braddon (Allawah Court) and the custodian of Section 7 Reid (Bega Court).[3] During the study and subsequently, the Catholic Church indicated its desire to retain a church within the redevelopment plans.[4] Accordingly the planning study showed a new building could be constructed on the site of St Patrick’s Church and indicated that a church could be located on the ground floor of the building to be erected on the site of the present church.[5]
[3] Tribunal documents page 867 ff
[4] Tribunal documents page 351
[5] Tribunal documents page 868
5.The following persons have made applications to be added as third parties to the proceedings because they argue that their interests are affected by the application for review:
(a) Mr Dallas Hosking on 28 August 2012;
(b) Mr William Meani on 30 August 2012;
(c) Mr Vincent Kane on 6 September 2012; and
(d) the Parish Pastoral Council of St Brigid’s and St Patrick’s Central Canberra (Parish Pastoral Council) on 21 November 2012.
6.Mr Hosking, Mr Meani, Mr Kane and the Parish Pastoral Council will be referred to in this decision individually by name or collectively hereafter as the “Third Parties”.
7.The applicant opposed the application for the Third Parties to be added as parties in the proceedings and submitted that the Tribunal should exercise its power under section 56(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) not to add the Third Parties.
8.On 6 September 2012, the Tribunal directed the Third Parties to each file and serve submissions in support of their applications to be joined as parties to the proceedings. The Tribunal also directed the respondent to file submissions and the applicant to file submissions in reply. In his application to the Tribunal, Mr Hosking challenged the authority of the applicant to file the application for review and therefore orders were also made on 6 September 2012 requiring the applicant to demonstrate that it had authority to commence the proceedings.
9.In a further directions hearing on 11 October 2012, the Tribunal raised the question of whether the Human Rights Act 2004 (Human Rights Act) was enlivened by the facts before the Tribunal and ordered that the Third Parties, the applicant and the respondent to provide any further submissions by 16 November 2012. An interlocutory hearing was held on 21 November 2012. At the interlocutory hearing Mr Hijazi appeared for Mr Meani. Mr Hosking and Mr Kane were self-represented. Dr Jarvis of counsel appeared for the respondent and Mr Walker of counsel appeared for the applicant.
10.During the hearing on 21 November 2012 the Parish Pastoral Council made an oral application to be added as a party to the proceedings. This was followed by a written application made on 28 November 2012.
Issue for Determination
11.The issue to be decided is whether the Third Parties should be ‘joined’ under section 29(5)(a) of the ACAT Act. Section 29(5)(a) of the ACAT Act states that the Tribunal may, by written notice to the parties to an application, join a person as a new party to the application if the person has an interest in the application. For various reasons that will be explained below, the Tribunal will describe the consequences of an order under 29(5)(a) of the ACAT Act as the “adding” of a third party, so as to properly distinguish between the interest of an applicant who commences the proceeding and a third party who applies under section 29(5)(a) of the ACAT Act after proceedings have already been commenced.
The Legal Framework
Statutory Provisions
The Heritage Act 2004
12.Section 114 of the Heritage Act states that an “interested person for the decision” may apply to the Tribunal for review of a “reviewable decision”, but makes no provision for the addition of parties. Section 112 of the Heritage Act defines the term “interested person” for the purposes of Part 17 of the Heritage Act (dealing with notification and review of decisions) in relation to a decision under section 40 (a decision about registration) as “anyone who made comments to the council about the decision before the end of the public consultation period for the decision”. Section 111 of the Heritage Act defines a reviewable decision as a decision mentioned in schedule 1 column 3, which includes the decision presently in contention to register the St Patrick’s Church under section 40 of the Heritage Act.
13.Section 13 of the Heritage Act also defines the term “interested person” in respect of a “place”, as each of the following:
(a) an owner;
(b) an occupier;
(c) a lessee or sublessee;
(d) an architect or designer of a building or structure at the place;
(e) if the place was nominated under section 28 - the nominator.
14.Pursuant to section 40 of the Heritage Act the respondent may register a place if satisfied, on reasonable grounds, that it has heritage significance. Section 10 of the Heritage Act defines heritage significance. Because that provision plays a central role in this decision, it is set out in full below.
10. Heritage significance
A place or object has heritage significance if it satisfies 1 or more of the following criteria (the heritage significance criteria):
(a) it demonstrates a high degree of technical or creative achievement (or both), by showing qualities of innovation, discovery, invention or an exceptionally fine level of application of existing techniques or approaches;
(b) it exhibits outstanding design or aesthetic qualities valued by the community or a cultural group;
(c) it is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function that is no longer practised, is in danger of being lost or is of exceptional interest;
(d) it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations;
(e) it is significant to the ACT because of its importance as part of local Aboriginal tradition;
(f) it is a rare or unique example of its kind, or is rare or unique in its comparative intactness;
(g) it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind;
(h) it has strong or special associations with a person, group, event, development or cultural phase in local or national history;
(i) it is significant for understanding the evolution of natural landscapes, including significant geological features, landforms, biota or natural processes;
(j) it has provided, or is likely to provide, information that will contribute significantly to a wider understanding of the natural or cultural history of the ACT because of its use or potential use as a research site or object, teaching site or object, type locality or benchmark site;
(k) for a place—it exhibits unusual richness, diversity or significant transitions of flora, fauna or natural landscapes and their elements;
(l) for a place—it is a significant ecological community, habitat or locality for any of the following:
(i) the life cycle of native species;
(ii) rare, threatened or uncommon species;
(iii) species at the limits of their natural range;
(iv) distinct occurrences of species.
The ACAT Act
15.Section 29(5)(a) of the ACAT Act states as follows:
(5) The tribunal may, by written notice to the parties to an application, join a person as a new party to the application if—
(a) the person has an interest in the application … .
16.The ACAT Act distinguishes between persons who are the applicant, the respondent, and other parties. Subsections 29(1) and 29(3) prescribe certain parties to an application, that is, the “applicant” and the “respondent”, and in an application for review, the applicant and the “decision-maker”. Section 29(6) of the ACAT Act restricts the discretion in section 29(5) by providing that “a person may not be joined as a new applicant” (emphasis added) if the person is not entitled to apply under the authorising law. In this case, the Third Parties are not seeking to be joined as applicants.
17.At the time of the enactment of section 114 of the Heritage Act, the predecessor to section 29(5) of the ACAT Act, section 28(2) of the Administrative Appeals Tribunal Act 1989 (ACT) (the ACT AAT Act), was in force. This provision (which has since been repealed) stated as follows:
(2) If an application has been made by a person to the tribunal for a review of a decision, any other person whose interests are affected by the decision may apply in writing to the tribunal to be made a party to the proceeding, and the tribunal may, in its discretion, by order, make that person a party to the proceeding.
18.Section 22Q of the ACAT Act is relevant to the application by the Parish Pastoral Council to be added as a party. This provision indicates that in some circumstances a reference to a person whose interests are affected by a decision may include a reference to an unincorporated body. Subsection 22Q(2) states that a body has interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the body.
Legislation Act 2001
19.The word “person” is defined in section 160 of the Legislation Act 2001 (the Legislation Act) to include a reference to a corporation as well as an individual. Further, the Dictionary of the Legislation Act states that “body” includes any group of people joined together for a common purpose, whether or not incorporated.
Human Rights Act 2004
20.The Tribunal drew the parties’ attention to the Human Rights Act which impacts on the proceedings in two ways: by section 30 which establishes an interpretative principle; and by section 40B which binds both the Tribunal and the respondent to act in a way that is compatible with a human right. The obligation in section 40B is placed upon public authorities and this term is defined in s 40 to include the Tribunal when it is acting in an administrative capacity.[6] Pursuant to section 40B of the Human Rights Act, it is unlawful for a public authority, in making a decision, to fail to give proper consideration to a relevant human right.
[6] Warren Gardner & Julie Beaver v ACT Planning and Land Authority [2010] ACAT 64; Allatt v ACT Government Health Directorate [2012] ACAT 67
21.A human right which may be relevant in these proceedings is found in s 14 of the Human Rights Act:
14 Freedom of thought, conscience, religion and belief
(1) Everyone has the right to freedom of thought, conscience and
religion. This right includes—(a) the freedom to have or to adopt a religion or belief of his or her
choice; and
(b) the freedom to demonstrate his or her religion or belief in
worship, observance, practice and teaching, either individually
or as part of a community and whether in public or private.
(2) No-one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.
The Interests Asserted by the Third Parties
22.The Third Parties asserted that their interests are affected by the decision under review. They support the registration of St Patrick’s Church by the respondent and expressed qualms about the redevelopment and potential loss of the full range of the ceremonies and services currently provided at St Patrick’s Church, such as weddings and funerals.
Mr Meani
23.Mr Hijazi, solicitor for Mr Meani, argued that the Heritage Act was silent on this issue but that the Third Parties should be added under section 29(5) of the ACAT Act because they have a special interest in the subject matter of the action, following US Tobacco Co v Minister for Consumer Affairs[7] (US Tobacco) and Onus v Alcoa of Australia Ltd[8] (Onus v Alcoa).
[7] (1988) 20 FCR 520 at 527-528
[8] (1981) 36 ALR 425 at 431
24.Mr Hijazi argued that the interests of the Third Parties are, in part, spiritual. This spiritual interest is analogous to the Aboriginal applicants in Onus v Alcoa who claimed standing by virtue of a customary interest in relics that were situated on land occupied by the respondent. In the same way that the relics were of spiritual importance to the applicants in Onus v Alcoa, the Third Parties have a spiritual interest in the preservation of the church.
25.Mr Meani sought to be added in his personal capacity and in a representative capacity as the chairperson of the Parish Pastoral Council for the last 12 years. His representative application is encompassed by the application made by the Parish Pastoral Council, which is dealt with below. In support of his application to be added in his personal capacity, he submitted that he is part of the congregation at St Patrick’s Church and regularly attends the church to worship and participate in church services and social activities as a member of the Catholic faith in the parish. In addition, Mr Meani is involved in the management of matters relating to the church site and church activities within the parish, particularly in his role as chairperson of the Parish Pastoral Council.
26.The duties of the Parish Pastoral Council include the administration and maintenance of the church, the raising of funds for the management of the church and the provision of pastoral care including the production of a fortnightly newsletter.[9]
[9] Meani Submissions 26 September 2012 at [12]
27.During the lead up to the registration, Mr Meani was consulted by the former Archbishop of Canberra and Goulburn, Mark Coldridge, and Monsignor Woods about the future of St Patrick’s Church. Mr Meani was also authorised by a group of 9 parishioners to represent them at hearings of the Tribunal, in a petition dated 4 September 2012 and filed with the Tribunal on 26 September 2012.
28.Mr Meani made a submission regarding the registration of St Patrick’s Church during the public consultation period.[10]
[10] Tribunal documents pages 533-535
Mr Hosking
29.Mr Hosking also sought to be added in his personal capacity. He has been a member of the Deutsche Bonifactius Gemeinde, also known as the German Catholic Church, for more than 40 years and has been the Vice President of the Board of Trustees of that church for the last 15 years and a member of the Deutsche Bonifactius Gemeinde - Canberra for about five years. Mr Hosking lives at Yass, and St Patrick’s Church is the nearest German community church to him and his wife. Each week they drive 60 kilometres to and from the church to “join in communion with people of [their] own language and customs”.[11]
[11] Hosking Submissions 14 September 2012
30.The German Catholic community has used St Patrick’s Church for over 52 years. The German Bishops’ Conference purchased a house in the same street as St Patrick’s in about 1960 and maintains a priest there, Father Evans. Father Evans has been there for about 20 years. A German language mass is conducted weekly at St Patrick’s.[12]
[12] Tribunal documents page 876
31.Mr Hosking also argued that the applicants as trustees have a responsibility to the parish as the “public juridic person” and that this juridic person is the owner of all assets of the parish.
32.Further, Mr Hosking indicated that he was consulted about the registration when he received an invitation from Monsignor Woods to discuss the issue with him. He made a submission in relation to the registration during the public consultation period.[13]
[13] Tribunal documents page 437
Mr Kane
33.Mr Kane similarly sought to be joined in his personal capacity. He has been a parishioner at St Patrick’s Church for over 51 years and he attends the church most days in the week. He has responsibility for a variety of managerial and non-sacramental functions associated with worship at St Patrick’s. He has also been involved in essential building maintenance works at St Patrick's since 2005.
34.He is currently President of the St Patrick’s Conference of the St Vincent De Paul Society. The Conference has a small room at St Patrick’s Church and it meets there weekly. Mr Kane advised that records show that the Conference has used the St Patrick’s premises as its meeting place from its formation in 1936 although it has used other premises over the years as well.
35.Mr Kane made a submission regarding the registration of St Patrick’s Church during the public consultation period.[14]
[14] Tribunal documents pages 521-524
The Parish Pastoral Council
36.Mr Hijazi, on behalf of the Parish Pastoral Council, made an oral application for that Council to be added to the proceedings during the interlocutory hearing held on 21 November 2012. A written application for interim orders was subsequently filed on 28 November 2012.
37.Mr Meani submitted that the Parish Pastoral Council is created under Canon Law, in particular, Canon 536, which Mr Meani paraphrased as follows:
If after consulting the council of priests the bishop considers it opportune, a pastoral council is to be established in each parish. In this council, which is presided over by the parish priest, Christ’s faithful, together with those who by virtue of their office are engaged in pastoral care in that parish, give their help in fostering pastoral action.[15]
[15] Meani Submissions 26 September 2012 at [11]
38.The duties and functions of the Parish Pastoral Council are many and varied, but include the administration and maintenance of the church and the raising of funds for the church.[16] Mr Hijazi also contended that, theologically, the Parish Pastoral Council:
exists within the fundamental expression of the church... as part of a parish which is of itself an expression of the church in a particular place, at a particular time, in the circumstances of the people who make up its life and of the local neighbourhood...”[17]
[16] Meani Submissions 26 September 2012 at [12]
[17] ‘Parish Pastoral Councils in Australia’ at PPC.catholic.org.au, quoted in Meani Submissions 22 October 2012 at [15]
The Respondent’s Contentions
39.The respondent supported the applications by Mr Hosking, Mr Meani and Mr Kane to be added as parties to the proceeding. It did not express a concluded view about the application by the Parish Pastoral Council, which was made during the interlocutory hearing.
40.The respondent argued that each of the men seeking to be added as parties uses the church as a member of the congregation and a worshipper at the church. Each is a lay office-holder in connection with the church. Therefore, relying on ReControl Investments Pty Ltd and Australian Broadcasting Tribunal (No. 1)[18] (Control) and US Tobacco, the respondent argued that the interest of the Third Parties is greater than a member of the general public and greater than a person who merely holds a belief that a particular type of conduct should be prevented or a particular law observed.[19]
[18] (1980) 3 ALD 74
[19] (1980) 3 ALD 74 at 79-80
41.In this case, the respondent submitted that there is a real or genuine interest which can be identified, which is influenced by the subject matter and the content of the decision under review. The decision under review was that the church had heritage significance under section 10(c) and 10(h) of the Heritage Act. As stated above, these subsections provide that the heritage significance of a place is as follows -
(c) it is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function that is no longer practised, is in danger of being lost or is of exceptional interest; …
(h) it has strong or special associations with a person, group, event, development or cultural phase in local or national history.
42.The respondent summarised the interest of Third Parties in relation to these provisions as follows:
The persons seeking joinder are persons who are contemporary practitioners of the religion and traditions or related customs that were practised on the site. They therefore have a natural interest in the preservation of the place associated with the history of their traditions and customs. [20]
[20] Respondent’s Submissions 19 October 2012 at [18]
43.The respondent argued that the decision under review is that the church buildings and surrounds should be conserved because of their heritage significance. The setting aside of or variation of the decision by the Tribunal may remove an added protection that is currently enjoyed by the site as a consequence of the respondent’s decision. The applicant’s intention is to sell the site for redevelopment, which would involve demolition of the church.
44.The respondent contended that a decision by the Tribunal to set aside the heritage listing will remove a protection against redevelopment. Redevelopment is likely to have a deleterious effect on the use of the land for worship and local parish activities. The interest of third parties distinguishes them from wider groups because their status as members of the church congregation differentiates them from non-Catholic members of the public and from Catholics of other parishes. Further, the respondent maintained that their status as lay office-bearers in connection with the church also distinguishes them from other Catholics in other parishes.
45.In response to the applicant’s argument that the Tribunal should in its discretion refuse the application to be added because of potential costs and delay and because the interests of the third parties are aligned to those of the respondent (see below), it was argued that the Tribunal must distinguish between the interests of a particular party and the outcome that is sought in the proceedings. The fact that there is an alignment between an outcome desired by respondent and the Third Parties is extraneous to the question of whether the Third Parties hold the requisite interest. Further, there is no evidence that cost and delay will be occasioned by the addition of the Third Parties.
The Applicant’s Contentions
46.The applicant trustees opposed the applications of the Third Parties to be added to the proceedings. Originally, in the applicant’s submissions filed on 2 October 2012, it was argued that the Third Parties’ interest was to be determined in the light of section 13 of the Heritage Act, which sets out the definition of “interested person” and because none of the Third Parties fell within this definition, their applications should fail. However, during the hearing, the focus of the applicant’s argument was upon s 29(5) of the ACAT Act and the interpretation of section 10 of the Heritage Act, which was the basis upon which the reviewable decision had been made.
47.The applicant contended that none of the third parties has a “special interest in the subject matter of the action”[21]; rather, the applicant claimed that the submissions made by Mr Hosking, Mr Meani and Mr Kane merely amount to an argument that they have attended St Patrick’s for a period and they are unhappy about the discussions to redevelop the church. This constitutes an emotional attachment to the church that they attend however, relying on the Australian Conservation Foundation v Commonwealth (Australian Conservation Foundation),[22] an emotional or indeed a spiritual attachment is insufficient to qualify as an interested person. The Onus v Alcoa case is distinguishable because in that case the applicants were custodians of the relics. That is not the case here.
[21] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 36; 36 ALR 425 at 431
[22] (1980) 146 CLR 493 at 530; 28 ALR 257 at 270
48.The applicant trustees further alleged that the Third Parties have no interest over and above any other member of the public who is able to visit the church and the Tribunal should not decide that these Third Parties are affected by the respondent’s decision simply because they attend or have attended St Patrick’s Church. If this were the test, then every person who has attended or attends the church could apply to be added to the proceedings and this would result in thousands of interested third parties being involved. In such case, the rules of standing would be virtually meaningless (citing Catholic Education Office and Human Rights and Equal Opportunity Commission).[23]
[23] [2003] AATA 899 at [14] – [15]
49.The applicant argued that the primary concern of Third Parties is with the redevelopment of St Patrick’s and that a new church would be inferior to the existing church. However the substantive question in the proceedings is whether St Patrick’s has heritage significance such that it satisfies section 10(c) and 10(h) of the Heritage Act. Whether the applicant decides to redevelop the site on which St Patrick’s is located and what characteristics a future church might have are not relevant considerations in these proceedings.
50.In relation to the application by the Parish Pastoral Council, the applicants argued that the Council is merely an advisory body to the parish priest and that it has no specific responsibility or authority beyond that of assisting the parish priest.
51.Further, the applicant referred to section 7(a) of the ACAT Act, which provides that the Tribunal must ensure that its procedures are “simple, quick, inexpensive and informal as is consistent with achieving justice” and argued that even if the Tribunal found that one or more of the Third Parties was an interested person that does not necessarily mean that they should be added, because the Tribunal must consider whether the addition of a third party would be in the interests of justice. Relying upon Control[24] as quoted in Re Coonan and Commissioner of Taxation[25]and Re: Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment[26] the applicant invited the Tribunal to decline to add the Third Parties due to the potential for a significant increase in costs and delay. For example, it was argued that the length of the hearing would be significantly extended and that irrelevant issues would be ventilated by the Third Parties.
[24] (1980) 3 ALD 74 at [81]
[25] [2006] AATA 329 at [18]
[26] (1986) 10 ALD 262 at 272
52.Finally, the applicant asserted that the interests of third parties and the respondent are closely aligned and therefore, relying upon Re: Marine World Victoria Ltd and Minister for Arts, Heritage and The Environment,[27] Re: Boyd and Comcare[28] and Catholic Education Office and Human Rights and Equal Opportunity Commission,[29] the Tribunal should exercise its discretion to refuse to add the Third Parties as there is nothing that the Third Parties can usefully contribute to the Tribunal's consideration of the matter that is not already likely to be covered by the respondent’s arguments.
[27] (1986) 10 ALD 262 at 271-272
[28] (1991) 23 ALD 392
[29] [2003] AATA 899
53.The applicant made further arguments about the trustees’ authority to lodge the application for review and this issue will be discussed below.
54.In the relation to the possible application of the Human Rights Act, the applicant argued that the right to freedom of religion in section 14 of the Human Rights Act and the right to fair hearing in section 21 of the Human Rights Act are not engaged by the present proceedings and, if they were, section 28 of the same Act operates to place a reasonable limits on those rights. Therefore, in the applicant’s submission, it is not necessary for the Tribunal to interpret section 29(5) of the ACAT Act in a way that is compatible with human rights.
CONSIDERATION OF THE ISSUES
55.As stated above, the issue to be decided is whether the Third Parties should be ‘joined’ under section 29(5)(a) of the ACAT Act. Insofar as the applicant continued to rely upon the definition of “interested person” in section 13 of the Heritage Act, the Tribunal expressly rejects this approach, as discussed below.
56.The Tribunal agrees with the submission made by the respondent, without objection by the other participants, that the terms of 29(5)(a) of the ACAT Act are not materially different to section 28(2) of the ACT AAT Act. Section 28(2) of the ACT AAT Act applied the test of whether the interests of the person who is seeking to be added to be proceedings are affected by the decision.
57.Therefore the Tribunal considers that the proper interpretation of section 29(5)(a) of the ACAT Act is that the interests of third parties who are seeking to be added to the proceedings must be affected by the decision under review in order for them to be “joined as a new party” under 29(5) of the ACAT Act. This test is familiar and is used in several analogous Commonwealth statutory provisions such as section 30 of the Administrative Appeals Tribunal Act 1975 (Cth) and section 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
58.It is to be noted that the test of whether a person's interests are affected by the decision is also used in provisions such as section 27 of Administrative Appeals Tribunal Act 1975 (Cth) that determine whether the applicant has standing to bring an application for review. The present Tribunal would prefer to focus upon cases decided under provisions where third parties are seeking to be added to the proceedings such as US Tobacco and Control, rather than cases that discuss the applicant’s standing because the criteria for the exercise of the power in relation to third parties in section 29(5) of the ACAT Act are less restrictive than the power that applies to applicants under section 29(6) of the ACAT Act. The situation involving the Third Parties here is analogous to the circumstances where a party is seeking to intervene in proceedings (other than by way of an intervention right in an authorising statute) or to be otherwise involved in proceedings as amicus curiae. This would probably involve an analysis of cases such as Levy v Victoria.[30]
[30] (1997) 189 CLR 579
59.However there is a confluence in the case law, particularly in administrative law, between analyses of the applicant’s standing and a third party who alleges that his or her interests are affected by the decision. For example, the seminal High Court judgments on applicants’ standing are frequently cited by courts when determining whether a third party's interests are affected, therefore it is artificial to attempt to demarcate between the interests of applicants and third parties. Accordingly, the participants in the present proceedings have relied upon case law where an applicant’s standing is challenged.
60.The general approach that must be adopted by the Tribunal in resolving this question must be consistent with the obligation under section 7(a) of the ACAT Act to ensure that procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice and should be in comity with the approach to standing that has been adopted by the Commonwealth Administrative Appeals Tribunal, which has been described as “liberal and flexible”.[31]
[31] R Creyke and J McMillan, Control of Government Action: Text, Cases & Commentary 3rd edn (2012), page 990
61.Determining whether a person’s interests are affected by a decision under review begins with the concept of a special interest discussed by Gibbs J (as he then was) in Australian Conservation Foundation v Commonwealth. In that case his Honour stated:
an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of the public right or to enforce the performance of the public duty.[32]
[32] (1980) 146 CLR 493 at 526
62.Gibbs J considered that it was necessary for the would-be litigant to have a special interest in the subject matter of the action. However, an interest “does not mean a mere intellectual or emotional concern”.[33]
[33] (1980) 146 CLR 493 at 530
63.The relevant principle was stated by the Full Court of the Federal Court of Australia in US Tobacco as follows:
The term ‘interest’ has long been an expression used within the law with respect to parties so as to require an involvement with the case greater than the concern of a person who was a mere intermeddler or busybody. Nevertheless, the criterion … is not a restrictive one. ... The necessary interest need not be legal, proprietary, financial or other tangible interests. Neither need it be peculiar to the particular person. [34]
[34] (1988) 20 FCR 520 at 527
64.The Court in US Tobacco relied in part upon the decision of Davies J in Control where his Honour made the following additional points in relation to, inter alia, section 30 of the Administrative Appeals Tribunal Act 1975 (Cth):
… the words “interests are affected” denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest.[35]
[35] (1980) 3 ALD 74 at 79
65.Both Davies J in Control and, interstitially, the Court in US Tobacco quoted Brennan J (as he then was) in Re McHattan and Collector of Customs (NSW) (McHattan):
The relevant ‘interests’ do not have to be pecuniary interests or even specific legal rights: cf Bilbao v Farquhar [1974] 1 NSWLR 377 at 380 per Hutley JA. Restrictions of that kind are incompatible with the variety of decisions which are subject to review — some decisions affecting legal rights, others being unlikely to do so.[36]
[36] (1977) 1 ALD 67, at 69–70
66.Davies J (both originally and as quoted in US Tobacco) continued:
However, a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives “real”, “genuine” and “direct” to describe the relationship required between the decision and the interest. Section …. 30(1) do[es] not make use of adjectives but [does] require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review.
67.A concept of remoteness was developed by Brennan J (as he then was) in McHattan as follows:
However, a decision which affects interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote … . The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.[37]
[37] (1977) 1 ALD 67 at 70
68.Consequently, in order to succeed in their applications under section 29(5)(a) of the ACAT Act, the Third Parties must establish that their interests are affected in a way that is greater than a mere emotional or intellectual concern and greater than that held by a member of the public who holds the view that the law should be observed. Their interest must be genuine, real and direct but need not be legal or equitable or pecuniary. Finally, there must be evidence to show that their interests are affected by the decision in a way that is not too remote. On the last point, the Tribunal must determine whether the interests alleged by the Third Parties fall within the “ripples of affection” which are recognised by law, having regard to the subject and context of the decision under review.
69.As stated above, in the applicant’s written submissions filed on 2 October 2012 it was argued that the content of the terms “affect” and “interest” are to be seen in the light of the scope and purpose of the particular statute in issue, citing Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (Alphapharm)[38]. It was contended that, applying Alphapharm, the terms “affect” and “interest” should be considered in the light of section 13(1) of the Heritage Act, which sets out who is an “interested person”, but since none of the Third Parties fell within this definition, their applications to be added as parties should fail. During the hearing, the focus of the applicant’s argument was upon the interpretation of section 10 of the Heritage Act, which is the basis upon which the reviewable decision was made. This accords with the approach adopted by the courts in US Tobacco, Control and McHattan.
[38] (1994) 121 ALR 373 at 395 (per Gummow)
70.The respondents and Mr Meani considered that the Heritage Act was silent on the issue of the criteria to be applied when third parties are seeking to be added to ACAT proceedings, therefore section 29(5) of the ACAT Act must be applied.
71.Insofar as the applicant continues to rely upon the argument that section 13 of the Heritage Act applies, alone or in combination with the High Court decision in Allan v Transurban City Link Ltd[39] (Allan), the Tribunal expressly rejects this approach and therefore distinguishes Allan because section 13 of the Heritage Act applies to applicants rather than third parties seeking to be added after an application for review has been filed. The Tribunal therefore agrees with respondent and Mr Meani that the Heritage Act is silent on the issue and the issue must be determined by reference to section 29(5)(a) of the ACAT Act.
[39] (2001) 208 CLR 167
72.Following on from a request by the Tribunal, the parties filed very helpful submissions on the operation of the Human Rights Act in this case, notably submissions about the right to freedom of religion in section 14 of that Act which includes the freedom to worship as part of a community and the right to fair hearing under section 21 of that Act.
73.The Tribunal has considered the operation of these provisions but it is not necessary to engage in a protracted analysis of the Human Rights Act because once the relevant statutory provisions (constituted by section 29(5) of the ACAT Act and section 10 of the Heritage Act) have been determined, it is only necessary to engage in a conventional application of those statutory provisions to the interests alleged by the Third Parties.[40] In particular, there are no competing available meanings that are in play in this case which require the application of section 30 of the Human Rights Act.[41]
[40] Momcilovic v The Queen (2011) 245 CLR 1
[41] Re Islam [2010] 244 FLR 158 at [236]; compare Allatt v ACT Government Health Directorate [2012] ACAT 67
The Status of the Third Parties as Occupiers
74.There was some discussion in the hearing as to whether any of the Third Parties might be classified as occupiers of the land. The applicant argued that no interest in the land, such as a contractual licence, had been conferred upon them. The respondent rightly conceded that the Tribunal does not have sufficient evidence at this stage to make such a finding. Accordingly, the Tribunal declines to make any findings as to whether or not the Third Parties are occupiers.
Conclusion - Mr Hosking, Mr Meani and Mr Kane
75.In this part of the decision the Tribunal sets out its findings in relation to the application by the three men. The application by the Parish Pastoral Council is dealt with separately below.
76.The Tribunal finds that each of the three men, Mr Hosking, Mr Meani and Mr Kane, has a special interest in the subject matter of the action. Each of these men has an interest that is greater than a non-Catholic member of the public and greater than Catholic members of the public who are not members of the congregation at St Patrick’s Church.[42] As worshippers at the church, their interest in the proceedings is spiritual and not merely an emotional or intellectual concern.
[42] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 36
77.There is some doubt as to whether a spiritual concern by itself is sufficient to confer a special interest in this case. The Tribunal notes the argument made by Mr Hijazi on behalf of Mr Meani that the special interest was, in part, spiritual, relying on Onus v Alcoa. In that case, Alcoa was proposing to build a smelter on land that it occupied in Portland, Victoria. The applicants, members of the Gournditch-jmara Aboriginal community, alleged that the land contained relics of the former Aboriginal occupation of the area and the development threatened the relics in breach of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) (the Relics Act). The applicants were descendants of the Gournditch-jmara people who had occupied the land and were therefore custodians of the relics under customary law. The High Court found that the applicants had standing to enforce the Relics Act to protect the relics said to exist on the land occupied by the respondent.[43] As noted above, Mr Hijazi argued that the church building at St Patrick’s is analogous to the relics in Onus v Alcoa.
[43] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 36
78.The applicant argued that Onus v Alcoa should be distinguished because members of the aboriginal community who claimed to have standing in that case were custodians of the relics under customary law.
79.There is no doubt that the applicants’ custodianship was an important element of the facts in Onus v Alcoa. However, it is not necessary for the Tribunal to decide whether a spiritual concern is a sufficient interest in the present case because there are elements of each application which cumulatively give rise to a special interest which is not too remote. It is to be noted however, that the reasoning of the High Court in Onus v Alcoa recognises that the proximity of a would-be litigant to the subject matter is a critical consideration. For example, Stephen J stated:
As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter. The present appellants are members of a small community of aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors’ occupation of that area and possess for their community great cultural and spiritual significance. … The importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection.
80.Similarly, Gibbs CJ made the following comparison, focusing upon the particular characteristics of the members who were seeking standing and the close nature of their interest:
The position of a small community of aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different indeed from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian.[44]
[44] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 37
81.This is similar to the “ripples of affection” test that was discussed in McHattan, Control and US Tobacco.
82.The elements of the applications by the three men which cumulatively give rise to the special interest are as follows. In Mr Hosking’s case there is a long involvement with a significant community and religious group that uses the church - the Deutsche Bonifactius Gemeinde - and a five-year association with St Patrick’s Church itself. Mr Kane has worshipped at the church for 52 years and performs a variety of functions that assist the maintenance and administration of the church. Mr Meani has also had a long involvement with the church as a worshipper and performs many administrative duties to assist the church and the parish priest. However, overall, it is the role of the three men as lay office-bearers in organisations that make use of the physical premises of the church in combination with the assistance they provide in the operation of parish activities that conclusively leads to the decision that their interests are affected. Although their applications to be added as parties are in a personal rather than representative capacity (with the exception of Mr Meani’s representative application which will be discussed below), nevertheless their interests are affected by the subject matter of the decision.
83.The decision in this case is a registration of St Patrick’s Church under section 40 of the Heritage Act due to its heritage significance. The Tribunal adopts the reasoning of the respondent that the heritage listing provides protection against redevelopment and the interest of the Third Parties is to seek to uphold the decision under review so as to conserve the church buildings and surrounds. The respondent registered the building under subsections 10(c) and (h) and it may be that these provisions are relevant to the Third Parties as contemporary practitioners of religion or tradition or related customs that have been practised on the site. However, counsel for the applicant conceded during the hearing that because the Tribunal stands in the shoes the decision maker[45] when engaging in merits review, then a finding by the Tribunal of heritage significance (or lack thereof) under section 10 of the Heritage Act is potentially available under any of its subsections. Therefore other heritage significance criteria may be considered, for example subsection 10(d) which states that the place may have heritage significance if:
(d) it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations; ....
[45] Drake v Minister of Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589
84.Having found that the interests of the three men are sufficient to allow them to be added as parties under section 29(5)(a) of the ACAT Act, the Tribunal declines to exercise its discretion to refuse the applications due to the potential cost and delay that might arise by the addition. No evidence was put forward by the applicant to support this argument and the Tribunal has extensive powers to control its proceedings in any case. Similarly the Tribunal is not persuaded by the applicant’s argument that the interests of the Third Parties and the respondent are so aligned that the addition of the Third Parties will add nothing to the proceedings. This argument is speculative at this stage and should not act as an obstacle to the joinder.
85.Therefore, based on the foregoing, each of the men who has applied to be joined as parties under section 29(5) of the ACAT Act has an interest that is affected by the subject matter of the proceedings. Applying McHattan, Control, US Tobacco and Onus v Alcoa their interest is not too remote from the subject matter of the reviewable decision. Accordingly they will be added as parties.
Conclusion – Parish Pastoral Council
86.In relation to the application by the Parish Pastoral Council, the Tribunal refuses the application for that group to be added as a party. Mr Meani, on behalf of the group, did not satisfy the Tribunal that the Parish Pastoral Council had sufficient independence to constitute a “person” for the purpose of section 29(5) of the ACAT Act and the definition of that word in the Legislation Act.
87.As stated above, “person” is defined in section 160 of the Legislation Act to include a reference to a corporation as well as an individual. Further, the Dictionary of the Legislation Act states that “body” includes any group of people joined together for a common purpose, whether or not incorporated. This joining of people “together for a common purpose” was not established by Mr Meani. As argued by the applicant, the Parish Pastoral Council has not been established in any way that is sui juris capable of asserting rights against the applicant. Rather it has been established by the diocesan Bishop to be part of the applicant. The Parish Pastoral Council is a consultative body only, with functions that include advising the parish priest. It is not a governing or independent body and cannot enter into arrangements in its own right.[46]
[46] Applicant Submissions 7 November 2012 at [47]
88.Even if the Parish Pastoral Council did have sufficient independence to constitute some type of unincorporated association of the purposes of section 22Q of the ACAT Act, it was unclear whether the objects and purposes of the Council, (argued by Mr Meani to include elements of Canon Law) include a proceeding such as this.
89.Further, it was not established that Mr Meani as chairperson of the Parish Pastoral Council had the authority to represent that Council, as opposed to the group of nine parishioners who had signed the petition authorising him to act on their behalf.
90.Accordingly the application by the Parish Pastoral Council to be added as a party is dismissed.
Authority
91.The Tribunal notes that Mr Hosking challenged the applicant trustees’ authority to lodge the application for review. However, as discussed in the interlocutory hearing, the Tribunal finds that any irregularity in the commencement of proceedings has been cured by the resolution of the trustees on 7 September 2012. This had the effect of ratifying the earlier commencement.
92.Because the applicant’s powers to commence the proceedings are derived from the Roman Catholic Church Property Trust Act 1937 (ACT), the Tribunal does not consider that the issue raised by Mr Hosking regarding the juridic person is relevant to the present application for interim orders.
………………………………..
Professor P. Spender
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER:
AT 12/49
PARTIES, APPLICANT:
TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF CANBERRA AND GOULBURN
PARTIES, RESPONDENT:
THE AUSTRALIAN CAPITAL TERRITORY HERITAGE COUNCIL
COUNSEL APPEARING, APPLICANT
Mr P Walker
COUNSEL APPEARING, RESPONDENT
Dr D Jarvis
SOLICITORS FOR APPLICANT
King Wood Mallesons
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Professor P Spender
DATES OF HEARING:
21 November 2012
PLACE OF HEARING:
Canberra
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
3
0
0